Arizona Loses Bid for Trust Land Water Rights

PHOENIX (CN) – Water rights were not reserved on almost 10 million acres of land that the U.S. government gave Arizona to support education, the Arizona Supreme Court ruled. Click here to read Courthouse News’ Environmental Law Review. The Arizona-New Mexico Enabling Act, passed in 1910, “provided ‘bulk’ grants consisting of a set number of acres for other specific purposes, including universities; government buildings; prisons; insane asylums; a school for the deaf and blind; normal schools; charitable, penal, and reform institutions; agricultural and mechanical colleges; a school of mines; military institutes; and the payment of certain bonds,” according to the Wednesday decision. Arizona manages more than 9.2 million acres of state trust lands, with about 1.4 million in the Little Colorado River Basin and 5.1 million in the Gila River Basin. The state moved for partial judgment in the Little Colorado and Gila River adjudications in Superior Court to recognize federal reserved water rights for the land. But judges in Maricopa and Apache Counties judge found that the reserved water rights doctrine does not apply to state trust lands. Writing for the Arizona Supreme Court, Justice A. John Pelander noted that the state’s appeal “has not argued that, without federal reserved water rights, the state trust lands will become worthless or incapable of producing a fund to support their designated beneficiaries.” The decision notes that a similar fight occurred in New Mexico, where the court of appeals found that “the relevant language in our states’ common Organic and Enabling Acts ‘did not sufficiently withdraw or reserve lands to create implied federal reserved water rights’ and, therefore, did not satisfy ‘the threshold requirements of demonstrating the existence’ of such rights.” Although “the sections of the Enabling Act providing for Arizona’s and New Mexico’s land grants are distinct, the language and context of the separate sections are substantially similar for purposes of analyzing the State’s reserved water right claim here,” Pelander wrote for a four-member panel. Arizona also argued that the trust lands “were granted to fund congressionally identified institutions, and they therefore were reserved for a federal purpose, shown by the fact that Congress established a trust with federal enforcement power,” according to the court’s summary. But the panel disagreed. “Support of the common schools and other specified institutions undoubtedly serves the public interest,” Pelander wrote. “It is not, however, a federal purpose.” Congress “knew how to reserve land for a federal purpose and effectively did so in the Enabling Act when it excluded from selection by the state any lands valuable for providing water power,” he added.